Anderson v. Paterson [2002] NZFLR 641

INCADAT legal file Hague parental abduction

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Rights of Custody – Art. 3
The father argued that he held rights of custody and that the removal breached those rights and was therefore wrongful. For her part the mother contended that the father did not hold any rights of custody. It was the father’s case that he and the mother were living together as husband and wife at the time the child was born. Under the terms of s. 6(2) of the Guardianship Act 1968 that would make him a guardian of the child and be likely to attribute him with custodial rights. After considering the evidence the trial judge rejected this argument finding that the parents’ relationship, before and after the birth, to have been fragmented and inconstant, consequently it did not satisfy the requirements of s. 6(2). Attention then turned to the meaning of rights of custody as set out in s. 4 of the Guardianship Amendment Act 1991 and as interpreted in the New Zealand Court of Appeal decision Dellabarca v Christie [1999] 2 NZLR 548 [INCADAT cite: HC/E/NZ 295]. The trial judge debated whether a non-guardian father should be in an inferior position to a father who is a guardian or even a married father. He suggested that the most important factor was the relationship between the ‘non-custodial parent’ and the child after the birth and as the child is growing up. He noted that the notional concept of “guardianship” did not necessarily determine the question of rights of custody. The crucial issue was the existence of an interest or expectation which was enforceable. The trial judge concluded that since the father had the right to apply for custody and access orders pursuant to ss. 11 and 15 of the Guardianship Act 1968 this was sufficient to qualify as a right of custody under the Convention. It was a right which could be effectively exercised and, ultimately, be enforced. While this finding ran counter to what was implicit in the Court of Appeal decision the trial judge noted that the point was not specifically addressed in that case. He held that ss. 11 and 15 of the Guardianship Act 1968 provided the necessary rights of custody for non-guardian fathers for the purposes of the Convention. The father was exercising these rights of custody by caring intermittently for the child. The trial judge further supported the approach of the English Court of Appeal in the case of Re B. (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT cite: HC/E/UKe 4]. Pursuant to s 18 of the Guardianship Amendment Act 1991, the court made an order declaring that the removal was wrongful within the meaning of Article 3 of the Convention.
Procedural Matters
It may be noted that no cross examination of witnesses was allowed. This was considered to be appropriate given that the mother was not present.